Ditch the fence

It is a truism of my now-ignoble profession that among the basic skills a lawyer should posses, is the ability to read, understand and interpret contracts - and this skill extends to parsing the meaning of oral contracts. The key elements of a contract are known to us: an offer is made; an offer is accepted; consideration is paid. Everything else (grounds for breach, dispute resolution, jurisdiction, etc.) is the meat and potatoes of lawyering, but the triumvirate of offer, acceptance and consideration are the foundation of all contracts. The longer one practices as a lawyer, the more ingrained the finer aspects of contracts law become. And by the time the President of the Republic confers you with the rank of "senior counsel", you are a walking, talking compendium of contract law.

Or so one might think.

A former Vice-President of Kenya has been conferred with the rank of senior counsel. He's held that rank for almost two years. He is the leader of a political party that is part of a coalition political party. The coalition agreement was signed in his presence by the secretary-general of his political party after interminable negotiations at which the terms of the agreement were agreed to by the principals of the coalition's members. The coalition agreement is, for all intents and purposes, a contract.

However...

Some of the things we were no taught in law school are still pretty obvious. You always keep a copy of a contract that you have signed. You receive or make a copy at the moment the contract is signed. You don't ask the other party to send you a signed copy later (though many of us seem to do so with insurance contracts). The higher the stakes in the contract, the more urgent the need to keep a copy once ink hits paper.

But Kenyans do things different.

We have been witness to the wooing that went on to get our senior counsel into the coalition. He played hard to get, dangling his affections in front of the two main political agglomerations. He even declared at one point that he would be the most foolish man if he backed the presidential ambitions of the senior-most presidential candidate of the day for a third time. But as in all waltzes, he eventually chose a side, and put pen to paper. And then tried to negotiate more favourable terms. In Kenya, child, we do things different.

From the moment he - well, his secretary-general - signed the coalition agreement, our senior counsel has bitched about everything. It is clear that he thinks he is special. His inflated ego cannot countenance that there is anyone else who holds greater political weight. And because of his special nature, he wants to take the No. 2 slot on the ballot, and a lion's share of political positions (and the power the positions imply) in the bargain. And he is not amused that his coalition partners do not recognise the legitimacy of his demands. The suggestion that someone else might make a better fit (another senior counsel with a hard-eyed approach to political combat has been suggested as a better running mate) has driven him and his allies to issue threats, both veiled and unveiled. "Unconstitutional" has been bandied about with wild abandon.

It worries me that senior lawyers, senior counsel no less, have forgotten the basic rules of lawyering when it comes to contracts. I can excuse lapses by people who hold PhDs in communication sciences when it comes to contracts - but only barely. They rely on lawyers to parse the written and unwritten rules of contract law. But how a senior counsel comes to allege that (a) he didn't read the contract and (b) he didn't get a copy of the contract and (c) the contract he signed is unconstitutional baffles the devil out of me. Now it might be that all three are true (undue influence and coercion can be the basis for all three scenarios), but only a child will believe that what we are witnessing is anything but the political equivalent  of buyer's remorse. Our wakili didn't want to sign the contract; he didn't know what to negotiate for; he was afraid to ask for a copy of the contract; and now he wishes he had gone with the other suitor who seems to have a bottomless pit of cash.

He should just burn this bridge.

Unfair snickering accompanies mention of fences and watermelons when this man's name is mentioned. Unfair but eerily dead right. He would do his tattered reputation the power of good if he simply burnt his last bridges with his coalition partners, especially the senior-most coalition partner. He should take a stand and kama mbaya, mbaya! He and his acolytes should stop grovelling. They should go it alone, if that is what their hearts desire. It is the only way they can redeem a measure of self-respect. If not, they should wait their turn outside the principal's office like everyone else.

Gaslighting won't work

When doubts are raised about the Chosen One at this year's general election, the doubts are not always motivated by animus. There are those among us who do not appreciate the hectoring tone adopted by Lil J, as some Twitter wag has taken to calling Junet Mohamed. Nor are we amused by the constant stream of twitter diatribe from the one Miguna Miguna calls the Fat Toad of Buffalo. As we have demonstrated on countless occasions, Kenyans are not morons. We have not been bamboozled in the political choices we have made since the halcyon days of "Yote Yawezekana Bila Moi". So the leadership of the Azimio la Umoja One Kenya Tours and Safaris should stop with the lectures and subliminal intimidation tactics.

The same goes for the putative saviours of the Republic in the Kenya Kwanza Wheelbarrow CBO. Just because Rigathi claims that he and his compadres have been he victims of tyranny does not erase the fact that Rigathi was a District Officer and that his preferred candidate was an energetic promoter of Youth for Kanu '92 (Y92) and that by the time they were done with the first multiparty elections, inflation was out of hand, at least one opposition presidential candidate was dead, land clashes had displaced tens of thousands of Kenyans, and Nchi Ya Kitu Kidogo had become a painful reality.

The point of my screed is that the rival political campaigns must take heed that Kenyans will decide; it is not boardroom mechanisms that will bring forth the Fifth President of the Republic. No amount of maneuvering and manipulating and intimidating will make Kenyans forget the stakes of the general election. If Baba is the choice of the majority, so be it. If Wheelbarrownomics is the winning formula, the ballots cast will be proof of concept. But enough with the gaslighting.

Snatching defeat from the jaws of victory?

Knowing what we know, and seeing what we see, I am baffled by the lengths that senior members of the Azimio-One Kenya Tours and Safaris will go to set their house on fire three months before the general elections, and thereby jeopardising Mr Odinga's chances of becoming The Fifth. First it was the ham-fisted wooing of Mr Musyoka, SC, away from the Kenya Kwanza wheelbarrow. You got the impression that Mr Musyoka, SC, had been mugged on his way to City Market to buy fish for the weekend. There was little in the way of finesse as he finally joined the Azimio agglomeration. And it got worse from there.

There were unpleasant accusations that none of the signatories had read the coalition agreement. There were hilarious snafus as premature whinging over Deputy President slots were mouthed in disparate barazas before lacklustre crowds. The impression that the mugging had morphed into a hostage crisis has only gained credence in recent days with the appointment of a panel to choose Mr. Odinga's running mate. The Azimio mouthpiece, a USA-based law professor, and an excitable Migori MP have done much to undermine confidence in Mr Musyoka's camp that he is, indeed, the chosen one, demanding that he shall face the same panel as other worthy candidates.

A Kitui MP, and his Ukambani cheering squad, have lambasted the panel-beating taking place in the search for a running mate. They are reinforced in their intransigence by an impeached ex-jailbird seeking gubernatorial glory in County 001. What they have done, in a weird sort of way, is to affirm how low one of Mwai Kibaki's Vice-Presidents has sunk in the political premier league. He can only trade on his glory days. He has little to show for that glory. If he isn't careful, the unfair tag of "has been" will wrap itself around his neck, albatross-like, and strangle his political career like a boa strangling a wee lamb.

I spent a few days with my very aged grandmother in Sawagongo. We ate fish and kuon. We drank copious amounts of clay-pot-chilled water (goodness, the humidity of Gem is something else). And we flirted with the heresy that the Wheelbarrow Acquisition and Distribution CBO may offer a better future because, despite it all, it has a less foot-in-the-mouth approach to things (sexist and misogynist rants of its Cosmo Chois notwithstanding) than Azimio-One Kenya Tours and Safaris.

I can understand the desperation of the Senior Counsel to be on the ballot one more time. He has. nothing to fall back on if he is left out in the cold. I can understand why his acolytes are threatening mass walkouts out of the coalition. They are only relevant if their fantasy of political supremacy is affirmed by the choice of the Senior Counsel as running mate. But politics based on desperation has little chance of persuading the voters to cast their ballots for them. It is, frankly, a little off-putting if not downright creepy. Sadly, though, the one Miguna Miguna calls the Toad of Buffalo cannot see his nose for the world. He will continue to pen increasingly ill-advised screeds. He will continue to tweet like a teenager. He is a harbinger of the drubbing that the Azimio Tours and Safaris is inviting.

May Toto win bigly

Bomet County made me so happy. Regardless of the final outcome on 9th August, the members of the United Democratic Alliance of Bomet County nominate Linet "Toto" Chepkorir, a precocious, confident and talented twenty-four year old, to stand in the election for woman representative at the forthcoming general election. That made be happy. She is proof positive that when given an inch, the youth will not wait to be invited tot he table; they will take the inch, go the mile and seize the opportunity. I just hope she doesn't behave like the moron from Meru who got sidelined by a flashy new SUV.

I hope she wins. I hope she prevails over old and experienced political hands. I don't care that she knows little about "national politics". That shit doesn't matter. She is intelligent. She will learn the ropes fast enough. After all, it is by being underestimated and dismissed by the more experienced hands that she has demonstrated her political mettle. Why shouldn't we think that she will manage the poisoned waters of Nairobi?

I left the label of "youth" a while ago; I am not in the same league as Ms Chekorir. She is miles ahead of me in offering leadership to a nation starved of it. By all accounts, she has been a leader for as long as she has had the opportunity. Kenya needs more young people like her to step up, and push out the old guard. My prayer is that she makes it to the National Assembly. My prayer is that she carries forward the torch that was left to die down by the co-option of the firebrands of the Second Liberation. My prayer is that she kicks butt.

It is not a race thing

"a race thing"

I don't know what to is about the troubles that we face that automatically leads us to assume that "Black people lack something". One of my seniors at the Bar is afflicted by this syndrome. Some of the more libertarian-minded among us think that Black Africans are incapable of appreciating the liberty that caucasians seem to take for granted. In any case, these Black people express an inferiority complex that is both baffling and complex.

I have had the privilege of visiting the United States and Australia; I stayed for three months in Accra and have made several forays to Arusha, Dar es Salaam, Zanzibar and Kigali. My visits to Washington DC and Sydney invited the casual racism that seems to pervade those world capitals, while my stay in Dar es Salaam and Accra was like a coming home event. I was among my people. I was among friends. That is not the same in some bits of my country; I can count the number of times my visits to Malindi or Mombasa have not been accompanied by casual racist bullying even by fellow Black Kenyans.

But at no point has it ever occurred to me that Black Kenyans were in any way inferior to the apparently "developed" Europeans and North Americans. Our economies and politics appear to be shambolic, but can you imagine trying to access basic health services in a US hospital? Your Blackness, successful or not, will not insulate you from the scorn of the British upturned nose. Witness the degrading language used to describe Rishi Sunak, the British chancellor of the exchequer.

Kenya, and many African countries, face many structural challenges. But these challenges are not as a result of the fact that we suffer congenital racial defects. That is not a question that should occur to us. We can point to the corruption that is supercharged by the presence of corrupt Europeans and North American government officials and multinational CEOs. Or the flawed economic and financial policies that underpin the global economic and financial order overseen by the twin succubi of the World Bank and IMF.

I promise you, brethren, that being Black is not a defect. It is many things, but it is not a defect. Don't fall for the trick of associating Black with evil, with bad, with wrong-ness. I can't articulate why I know Black is not wrong; I feel it in my bones and in the depths of my soul. I am not racially inferior to anyone. My people are not racially inferior.

IT. IS. NOT. A. RACE. THING.

Pray for me, Argentina

We prize seniority in my profession but I think that things have changed so much that seniority is almost meaningless. One of my seniors - he was called to the Bar more than a decade before I was - loves his senior status so much that he thinks that it confers on him great technical skill. If it were skills as a litigator, I would concede without a fuss that he stands heads and shoulders above many seasoned practitioners of those dark arts. If it were skills as an arranger of complex mergers or acquisitions, there are few who can hold a candle to him. However, when it comes to the drudgery of legislative drafting - the ouija-board-reading of legislative intent and the parsing of constitutional and legal language - the poor man is a minnow in a pool of piranha.

I mention all this to show the pernicious impact that seniority-above-all-else has on effective work. Many "seniors" are blinded to the malodorousness of their decision-making; the infallibility they believe seniority has conferred on them leads them to make professional and personal choices that often prove calamitous.

At work, I have been grappling with this dilemma. I am presented, more frequently these days, with legislative drafting work of such mind-numbing, cretinous dullardness that I must believe that I am being punk'd. There is no way senior members of the Bar would append their names to what appears to be the product of a political backwater like the dark smoke-filled backrooms of Kenya's political parties. The kind of schlock that is presented for "perusal, concurrence and approval" presents such grave risks to the Republic that I fear I may say something so impertinent and presumptuous I may yet destroy the government of the day.

It all boils down to the Seniority Syndrome and the fear of underlings to point out, quite rightly in my view, the utter nakedness of our seniors. What the seniors can't or don't care to see is how time-consuming it is to wind back their outrageous legislative suggestions and the rancour it engenders between teams - TEAMS! - of opposing underlings. Quite frankly, it is mentally draining and psychologically damaging for the less sanguine among us.

I had naively believed that the "retirement" of the more publicly reckless members of my poisonous profession would have calmed the waters. I was so very wrong. They left behind minor turd mountains in their wake that are now being trudged through the corridors of the State looking for professionals' desks to despoil. It is an election years and every bad legislative idea is being revived in the hopes that the distracted members of the National Assembly and Senate won't notice. Civil society has been so undermined by the refusal by its Robert Mugabes to retire that it is doubtful that there's a modern-day Mwalimu Mati to poke giant holes in those terrible, horrible, no good, very bad ideas.

So I sit and stare at these pages, praying for the ground to open up and swallow the authors of my distress, but realising, with despair, that those whom the Gods wish to punish, they first introduce to members of the Senior Council Bar. This is my personal hell. Pray for me, Argentina.

Lessons from the USA

What do you remember of the process that led to the appointment of Chief Justice Martha Koome? Do you remember how many applicants there were for the job? Do you remember that they were “interviewed” by the Judicial Service Commission or that they were “vetted” by the National Assembly? The interviews and vetting of the ultimate nominee were televised but I can honestly declare that I don’t remember much about it. Maybe the allegations of plagiarism leveled against an applicant by her students and the smug arrogance of another applicant, jacket off, that had the whiff of “Mta-do?” come to mind. Maybe they don’t.

In contrast, even from 8,000km away, I can recall key moments in the vetting of Associate Justices Gorsuch, Kavanaugh and Barrett by the United States Senate. Despite the obvious histrionics of the highly motivated partisans, the public vetting of the justices revealed a considerable amount about their judicial principles and philosophies. As has the most recent vetting of Judge Ketanji Brown Jackson. The degree to which their judicial records have been publicly scrutinized even before they sat before the US Senate was illuminating and when they were sworn in, it was clear where they stood on key constitutional and legal principles. I challenge you to say with confidence what Chief Justice Koome’s or Supreme Court Judge William Ouko’s constitutional and legal viewpoints are. (Both were appointed to the Supreme Court at the same time.)

Instead, the main topic of national discussion remains who will be president and even this discussion is not held on the basis of the political philosophies of the candidates rather than their perceived ability to mobilize tribal and ethnic vote banks in their favor. How the US chooses its judges is filled with political spectacle but the spectacle is not an end in itself; it serves the valuable task of indicating to a high degree of confidence whether or not their judicial officials can be trusted to do their job with impartiality and fairness. How Kenyans choose their Supreme Court judges and, by extension, their presidential candidates does not inspire any kind of confidence. Rather, it reinforces the feelings of nihilism that seem to pervade so much of our lives these days.

In the coming week, the US will have a new, highly respected and eminently qualified, associate justice of the Supreme Court of the United States while Kenya will be kept in the dark on whether the Supreme Court of the Republic of Kenya has been able to answer a simple question: what is the Basic Structure Doctrine and does it apply to the Constitution of Kenya. The High Court and Court of Appeal were able to answer this question, but it is only the Supreme Court that has the power to declare whether or not the lower courts were right. Instead of framing the question in this way, Kenyans have been encouraged to focus on two irrelevant and interrelated questions: does Kenya need the recommendations of the BBI and does the next president have an obligation to implement the BBI recommendations or not?

In my opinion, BBI (as catch all for the constitutional review issues raised for the purposes of securing the election of Raila Odinga and the continued engagement of Uhuru Kenyatta in national governance) is the wrong question. We must settle for posterity the question of the nature of our constitution’s basic structure, how it limits the procedure of constitutional amendment, and how the people are to be involved and engaged in the process of its amendment. For that question to be settle, other political and constitutional questions must be settled as well: is the president a king? Can parliament ignore its core constituencies? Can the judiciary take an activist posture in defense of the constitution’s basic structure? Instead, tragically, we are entertained by yellow-clad politicians parading themselves like TV starlets.

The way of the future

The clock keeps ticking inexorably towards 9th August 2022 when Kenyans in their millions will be asked to cast their ballots in favor of six different categories of candidates. The office that has elicited widespread excitement is the presidency, the highest political office in Kenya. The person to be nominated as a member of a county assembly in each of the counties does not elicit any attention by the chattering classes. We have been corralled into thinking of the presidency as the be all and end all of the 2022 general election.

Towards this end, the horse race has boiled down into a two-horse race: the incumbent Deputy President and the former Prime Minister. The former has had a spectacular falling out with his boss, who has called him epithets that raise the question as to why he continues to hold his job. The latter has kept his hopes of victory alive through four separate electoral disasters, and this time around, he has the president in his corner.

Our obsession with the presidency has hidden something more profound, something that was hinted at in the selection of the deputy president as the flag bearer of his rebel alliance: the complete absence and marginalization of young people from all levels of power. The upper echelons of institutions of power: political parties, faith ministries, corporate boards, civil society organizations, trades union, and the like are dominated by old men. Young people, women, members of marginalized communities and persons with disabilities are notable by their almost total absence in these offices. What’s worse are the platitudes that keep being repeated: the youth are the future of this country.

A common refrain is that the aged must make way for the young. What is never canvassed is the harsh reality: no one gives up power without a fight. Makau Mutua will not give up his chairmanship of the Kenya Human Rights Commission. Raila Odinga will not give up his leadership of the Orange Democratic Movement Party. James Mwangi will not give up the CEO’s office at Equity Bank. Bishop Muheria will continue to fulminate against hot-button cultural issues for as long as he white-knuckles his grip on the Arch-Diocese of Nyeri. Old men are here to stay and the only way they will leave is if they are pushed out by young people.

Young people must abandon the ayomyom philosophy they have been spoon-fed for the past thirty years. Young people must stop waiting to be chosen. Some of us have had opportunities to lead that we have shirked. We refuse to take up leadership in the home, in our communities, in our faith ministries or in our places of work because we fear failure. We have gotten used to “success” as the only metric that matters. We are no longer permitted to trial-and-error our way through life like our parents did. It is either success or bust. This has crippled the inter-generational transfer of power and wealth.

Old and no-longer-imaginative men have taken advantage. They have learnt the art of dishing out morsels to young people. There is a presidential candidate who has become notorious for distributing wheelbarrows to young people paid for out of billions that he cannot account for. What is amazing is that there are notable human rights defenders who see nothing wrong in defending this short-sighted and reckless scheme. Another p[residential candidate is notable for promising “free” money to young people out of taxes paid by the same young people or from the sweat of those young people. Listening to the two, it is obvious why tracking polls indicate that millions of young people are ambivalent about turning up at the polls in August.

But young people who should know better have done little to wrest leadership from the ancien regime. The CEO of the KCB Group has failed to mentor a younger person to succeed him such that his board has allegedly handed him a secret one-year extension to his contract. The presiding bishop emeritus of the Christ is the Answer Ministry has refused to fade into the background, popping up, on request and unilaterally, at major CITAM events. The Secretaries General of Kenya’s political parties are often young men, but they operate as vassals of their older, slower bosses rather than as the vanguard of the youth that seek political office. That dinosaurs like Musikari Kombo and Dalmas Otieno still have ambitions of high political office is an indictment of the young people who oversee operations of political parties.

Things will not change unless we abandon - truly abandon - business-as-usual. Kenya is ripe for a youth revolution. All it needs is the right spark and it will sweep away the old, decrepit and corrupt old guard. That spark, sadly, will not be lit by young people who have been taught to believe that wheelbarrows and six-thousand-shillings stipends are the way of the future.